Hardic Overseas (P) Ltd., Delhi V. ITO, New Delhi

ITA 4478/DEL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52792 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-10-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 07-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Assessee Lawyers: SURESH K GUPTA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 143(3); 10B

Judgement Text

ITA NO. 4478/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 4478/DEL/2010 A.Y. : 2003-04 HARDIC OVERSEAS PRIVATE LIMITED, 1421, NEEL KANTH APARTMENTS, SECTOR-13, ROHINI, DELHI 110 085 (PAN/GIR NO. : AAACH3282N) VS. INCOME TAX OFFICER, WARD 12(3), NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. SURESH K. GUPTA, CA DEPARTMENT BY : SH. A.K. MONGA, SR. D.R. ORDER ORDER ORDER ORDER PER PER PER PER SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 6.8.20 10 PERTAINING TO ASSESSMENT YEAR 2003-04. 2. THE GROUNDS RAISED READ AS UNDER:- (I) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS E RRED BOTH IN LAW AND ON FACTS OF THE CASE IN NOT ADMITTI NG THE ADDITIONAL EVIDENCES IN SUPPORT OF THE GROUNDS OF A PPEAL RAISED IN THE FIRST APPEAL SUBMITTED DURING THE APPE AL PROCEEDINGS UNDER RULE 46A OF THE INCOME TAX RULES. (II) NO PROPER OPPORTUNITY WERE AFFORDED TO THE APP ELLANT TO FURNISH THE REQUIRED INFORMATION BEFORE THE LD. ITA NO. 4478/DEL/2010 2 COMMISSIONER OF INCOME TAX (APPEALS) WHICH RESULTED INTO EXPARTE ORDER. (III) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ACTED AGAINST THE LEGAL POSITION SETTLED BY THE APEX COU RT IN NOT ACCEPTING THE SHARE APPLICATION MONEY OF ` 17,55,000 /- WHEN IDENTITY OF THE SHARE APPLICANT STOOD ESTABLIS HED BEYOND DOUBTS. (IV) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND FACTS IN CONFIRMING ADDITION OF ` 7, 08,057/- BEING THE AMOUNT STANDING IN THE NAME OF TRADE DEBTOR . (V) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS A CTED WITHOUT BASIS AND AGAINST PROVISIONS OF LAW IN CONF IRMING DISALLOWANCE OF DEDUCTION OF ` 265240/- U/S 10B OF THE INCOME TAX ACT. (VI) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WA S NOT JUSTIFIED IN SUSTAINING DISALLOWANCE OF ` 147240/- ON ACCOUNT OF TRAVELLING EXPENSES INCURRED FOR THE VI SITS OF DIRECTORS. (VII) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN SUSTAINING DISALLOWANCE OF ` 50,000/- O N ACCOUNT OF VEHICLE MAINTENANCE EXPENSES. (VIII) THE APPELLATE CRAVES LEAVE TO AMEND, ADD, MODI FY AND DELETE ANY OF THE ABOVE GROUNDS. 3. IN THIS CASE ASSESSMENT WAS FRAMED VIDE ORDER DA TED 24.3.2006 U/S 143(3) OF THE IT ACT AT NET TAXABLE INCOME OF ` 29,62,108/-. ITA NO. 4478/DEL/2010 3 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE ASSESSEES GROUNDS AND DECI DED THE ISSUE AGAINST THE ASSESSEE. 5. AGAINST THIS ORDER THE ASSESSEE IS IN APPEAL BEF ORE US. 6. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE AD DITIONAL EVIDENCES HAVE NOT BEEN ACCEPTED BY THE LD. COMMISSIO NER OF INCOME TAX (APPEALS). HE PLEADED THAT THEY ARE VERY VITAL . HE PRAYED THAT ONE OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE BEFOR E THE ASSESSING OFFICER TO CANVASS HIS CASE PROPERLY. HE AGREED WITH REGARD TO THE QUERY OF THE SHARE APPLICATION MONEY, ASSESSEE SHAL L BE SUBMITTING ALL THE RELEVANT DOCUMENTS AS WELL AS PRODUCE SHRI SANJA Y KUMAR SINGH AS REQUIRED BY THE ASSESSING OFFICER. 6.1 LD. DEPARTMENTAL REPRESENTATIVE DID NOT HAVE ANY SERIOUS OBJECTION TO THIS PROPOSITION. 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. IN OUR CONSIDERED OPINION, THE INTEREST OF JUSTICE WILL BE SERVED, IF THE MATTER REMITTED TO THE FILES OF THE A SSESSING OFFICER, TO CONSIDER ALL THE ISSUES AFRESH, AFTER GIVING ADEQUA TE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HENCE, THE APPEAL STA NDS REMITTED TO THE FILES OF THE ASSESSING OFFICER. ITA NO. 4478/DEL/2010 4 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04/10/2011, UPON CONCLUSION OF HEARING. SD/- SD/- [ [[ [C.L. SETHI C.L. SETHI C.L. SETHI C.L. SETHI] ]] ] [SHAMIM [SHAMIM [SHAMIM [SHAMIM YAHYA] YAHYA] YAHYA] YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 04/10/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES